Fair Work Australia (FWA) has granted a protected action ballot order (enabling the employees to vote on taking industrial action) before the commencement of bargaining, confirming a finding in an earlier decision that it is not necessary to first obtain a majority support determination when an employer has refused to bargain.
A union sought to commence negotiations for an enterprise agreement with an employer. The employer refused to negotiate. The union applied to FWA for a protected action ballot order and FWA granted that order. On appeal, a Full Bench majority agreed that a protected action ballot order could be granted where the employer had refused to bargain, even though a majority support determination had not been obtained. However, it also held that in this case the order should not have been granted because it was the union’s NSW branch which had attempted to bargain with the employer, whereas the union’s Federal branch had made the application.
After this appeal, the union persisted in attempting to negotiate with the employer and the employer continued to refuse to bargain. The union then made a fresh application to FWA for a protected action ballot order.
At the second hearing, FWA noted that the situation had changed to some degree since the first application. The union had provided details of the proposed enterprise agreement and the employer had given further reasons why it was not prepared to bargain. Importantly, FWA confirmed that majority support determinations, good faith bargaining orders or scope orders are not prerequisites to a protected action ballot order. The only requirement is that the applicant is “genuinely trying to reach agreement”. As FWA was satisfied the union had met this requirement, it granted the order.
Transport Workers’ Union of Australia v J.J. Richards and Sons Pty Ltd [2011] FWA 973